KANAK KANTI ROY Vs. KRIPA NATH GAIN

JUDGEMENT

(1.) This appeal arises out of a suit for enhancement of rent based on an agreement served under Section 46, Ben. Ten. Act and for ejectment on the ground of refusal to pay the enhanced rent. The suit was instituted in 1922. On a previous occasion, when the suit came up on second appeal before this Court, it was remitted to the lower appellate Court to determine the question of service of notice and other questions that might arise. The order of the remand was made in 1927. The Subordinate Judge, on remand, made a decree in plaintiff's favour. The defendant then appealed to this Court, and the said appeal being heard by our learned brother S. K. Ghose, J., that decree has been reversed. From his decision the present appeal has been preferred under the Letters Patent.

(2.) One of the questions mooted before the Subordinate Judge who heard the appeal on remand was whether in view of Section 20, Sub-section (1-A) introduced by Bengal Act 1 of 1925, the defendant had not acquired the status of an occupancy ryot so as to defeat the plaintiff's claim. This question was answered by the Subordinate Judge in the negative, but our learned brother S.K. Ghose, J. has taken a contrary view. This is the only question for our consideration in this appeal.

(3.) It was argued on behalf of the appellant that as the question was not raised before this Court on the previous occasion, when this Court remanded the case though Bengal Act 1 of 1925 had then come into force, the respondent was precluded from raising it afterwards. We are not prepared to accede to this contention : the order of remand left it open to the Subordinate Judge to deal with all questions that might arise in the suit, and if in support of his defence that he was an occupancy ryot the defendant put forward an additional and new reason based on Sub-section (1 A), Section 20, which was then the law, the Subordinate Judge was right in considering it.